tv CNN Newsroom CNN June 29, 2010 9:00am-11:00am EDT
continuing the conversation on today's stories, go to our blog at cnn.com/ampicks. that will wrap it up for us. see you tomorrow. >> the u.s. capitol was a busy place today. senate confirmation hearings for major presidential appointments, including general david petraeus as well as supreme court nominee elena kagan. cnn's special coverage of the senate hearings start now. here's john king and candy crowley live in washington. good morning from washington. you are looking at the flag over the u.s. supreme court which is out of session now. it went out of session yesterday. they are now minus one justice. that's what they are taking care
of. not too far away at the u.s. capitol. another hot day in washington. inside pretty cool so far. but the senate judiciary committee meetings you will see on the left of your screen. on the right of your screen, empty room right now will start to fill up because at 9:30 eastern time, we will be at the confirmation hearings of general david petraeus to become the commander with the u.s. and allied forces in afghanistan. of course, david petraeus used to be the head of centcom. now he's taking a demotion and wants to go over and take over in afghanistan clearly a huge, huge priority for the obama administration. the fact is that this comes in the wake of a firing of general stanley mcchrystal who said some untoward things, shall we say, in "rolling stone" in an interview. he is retiring. so we will hear those confirmation hearings and less about david petraeus. more about the war in
afghanistan. i'm candy crowley. >> i'm john king in washington. candy, this is an interesting day in the sense, number one, will we get candor from elena kagan? how much candor will we get from general petraeus? two hearings that will say a lot about two issues. one supreme court nominations, war in afghanistan, a role in the obama legacy. we are in material days of this administration. this is his second supreme court nominee and there are a host of big cases coming up through the pipeline. he invested in david petraeus a man he was doubtful, scornful of, as a senator when the iraq surge was under way and now he has invested the war in afghanistan in this one general who is probably the best recognized military commander in the united states at the moment saying we have a problem. the questions there will not be about general petraeus. they will be about a strategy and many supporters of the war of afghanistan think is off the track. >> what's interesting to me it is not just the president put his faith in general petraeus. it is almost the entire u.s. senate. i was struck, senator dianne
feinstein, over the weekend, talk -- said basically we have put all of our egg misthe petraeus basket. by that she men if he gets over there and doesn't like the civilian leadership and that is the u.s. ambassador to afghanistan and if he doesn't like the special envoy in afghanistan, holbrooke, he ought to get new ones. we spent a week saying the civilian has control over the military and she gave away the store to petraeus. that's how much they are depending on that guy. >> that's a grit question. how much leverage does this general have over this president? he's taking a demotion to go over there. can see he say mr. president, i know you told the country, i need more time or i can only send a small number of troops home. that will be a fascinating question. let's bring in our group here. the questions this morning to elena kagan. victoria thompson, gloria borger, ed rawlins. patrick lahey has just begun the
proceedings. let's go to capitol hill as we get to see question time. >> his legal work to ensure that either they could stay in their homes or at least if they did need to move to another neighborhood, they could take something with them to establish a good life there. he was also a person who spent an enormous am of time thinking about that neighborhood. he was involved in lots of community boards and citizen groups of various kinds. thinking about environmental projects. and land use projects. and he really treated that neighborhood of new york city as just, you know, he -- just so much cared about the welfare of it and poured his heart and soul to try to improve it. i think that what i learned from him was just the value of public service. was just the value of doing what you can in your neighborhood or in your nation or wherever you can find that opportunity to
help other people. and to serve the nation. so that's what i most took away from my father. my mother was -- i said yesterday that she was a kind of legendary teacher. she died only a couple of years ago. and my brothers and i, we expected a small funeral. we expected not very many people to attend. a lot of -- i don't have a large family. instead just tons and tons of people showed up and we couldn't figure out who they all were. it turned out these people who were then middle-aged, you know, 30-year-olds 40shgs-year-olds, whatever, they had my mother as a sixth grade teacher decades ago. and they were people that just wanted to come and pay their respects because they kept on coming up to me and my brothers and saying at the age of 12, your mother taught me that i could do anything. and she was really demanding. she was a really tough teacher. you mo. it was not -- you didn't slide
by in mrs. kagan's class. but she -- she got the most out of people. and she changed people's lives because of that. and if i look at my own career in this kind of strange way, not planned, but in this sort of strange way, i think that, you know, part of my life is my father and part of my life is my mother. that part of my life has been in public service. you have been really blessed with the opportunities i have had to work in governor and to serve this nation. part of my life is teaching. which i take enormous pleasure and joy from. i mean, the -- i am looking over your left shoulder, right on my side. and there's a stun of mine right there. and maybe there's some other students that are around the room. and it is -- it is a kind of great thing. >> we are doing our best to make
jeremy blush. you know, these -- these things that i -- each one of us, i think, speaks about with our parents what they brought us to. seems to me they gave you strong values. so we -- that speaks about who you are as a person. now we go to some of your legal ability sps some of criticized your background or legal -- even gone to what did you write on college papers. the chairman of the republican national committee criticized you last month for agreeing with justice thurgood marshall's observation that our constitution as originally drafted was imperfect. the criticism surprised me because everything that you read about the founders, they knew that -- they would lay down something this would not cover every foreseeable thing. how could they possibly foresee what the country is today. they were -- me wrote in broad terps.
they couldn't foresee every challenge. what's the -- what's your response to this criticism of you that was made because you -- agreed with justice marshall? how -- how would you describe the way the constitution has been amended sinks it was originally drafted? >> the framers were incredibly wise men. and if we always remembered that, we will do pretty well because -- part of their wisdom was that they wrote a constitution for the ages. and this was very much in their minds. this was part of their consciousness. you know. even that phrase that i quoted idea from the preamble of the constitution, i said, the constitution was to secure blessings of liberty. i didn't quote the next part of that phrase. it said lessons of liberty for themselves and their posterity. so they were looking towards the
future. they were looking generations and generations and generations ahead and knowing that they were writing a constitution for all of that period of time. and life -- circumstances and the world would change. just as it had changed in that your own lives very dramatically. so they knew all about the change. and they wrote a constitution, i think, that has all kinds of provisions in it. there are some that are very specific provisions and says what you are supposed to do and -- how things are supposed to work. so -- it says to be a senator, have you to be 30 years old. and that just means you have to be 30 years old. it doesn't matter if people mature earlier and doesn't matter if people's life spans change. you have to be 30 years old because that's what they wrote. and that's what -- they meant. that's what we should do. there are a range of other provisions in the constitution of a much more general kind.
and those provisions were men to be interpreted over time, to be applied to new situations and new factual context. the fourth amendment is a great example of this. it says that there shall be no unreasonable searches and seizures. what's unreasonable? that's a question. the framers could have given a whole primer on police practices. you know. which searches were reasonable? which searches weren't reasonable? lots of different rules for saying that. you about they didn't do that. i think that they didn't do that because of this incredible wisdom that they had that they knew that the world was going to change and that, you know, they didn't live with bomb-sniffing dogs and he detecting device. >> computers. >> computers. all of these questions that judges, courts, everybody is struggling with, police, in the fourth amendment context. and i think that they laid
down -- sometimes they laid down very specific rules. sometimes they laid down broad principles. either way we applied what they said. what they meant to do. so in that sense, we are all originalists. >> we also made changes and in the -- bill of rights, my own state of vermont didn't join the union until it saw the bill of rights would be ratified. the 19th amendment expansion of votes for women and the -- 26th amendment, the -- allowed 18-year-olds to go. we have seen major changes over the years. yesterday i talked about how the supreme court interprets plessy versus ferguson. it was overruled by brown versus board of education. same constitution. but people realize how changes are in society. i can't imagine anybody saying we should go back to ferguson
because that was decided first. i think that -- i do recall you being a special counsel with senator biden on this committee during a supreme court confirmation hearing. i was here, further down the -- down the road at the time. you wrote a law review article in the book review in which you r you argued these proceedings should be occasions to engage in a meaningful discussion of legal issues. now, you set the standard. you probably reread those words. >> many times. >> i will bet. as have i and i guarantee you, as have -- >> and you know what -- >> every member of this committee. >> they have been read to me many times, too. >> probably will again. how are you going to live up to that standard? >> senator lahey, before i answer that question, may i say
a little bit more about what you started with about constitutional changes? >> sure. >> just to show my commitment to being open. >> sure. go ahead. >> you said something that triggered a thought in me. as you said, there are these many changes that happened to the constitution. i think that it is important to realize that those changes do come in sort of two varieties. one is the formal amendment process. i think it was senator corning yesterday that talked about the process. that's tremendously important. so, you know, when thurgood marshall said that this was a defective constitution, you know, he was talking about the fact that this was a constitution and that counted slaves as three-fifths of a human being that didn't do anything about that original sin of our country. and the 14th amendment changed that. the 14th amendment was an enormous -- after the civil war.
and created a different constitution for america. so partly the change has come in that way. you about partly they -- they come outside the formal amendment process as well. and what you said about plessy and brown is absolutely right. that if you look at the specific intent of the drafters of the 14th amendment, they thought the 14th amendment was perfectly con sis 2010 segregated schools. i mean, you just have to -- you can't really argue otherwise as a historical matter. in brown, the court said otherwise. you know, step by step by step, the decision by decision and large part because of what justice marshall did, you know, we got to place the court said it is inconsistent with the principle of equal protection of the laws that the drafters of the 14th amend laid down. it is inconsistent with that
principle to have segregated schools. so that's the way in which change can happen as well. now, to go to your real question -- i -- aapologize for that digression. i have looked at that book review many times. and have been pointed to it. and here is what i think. pit still think that the basic points of that book review were right. the basic points were that -- the senate has a very significant role to play in picking supreme court justices. that it is important who serves on the supreme court, that everybody should treat it as important. and that the senate should -- has a constitutional sxont should take that constitutional responsibility seriously. it should also have the information it needs to take
that seriously and part of that is get something sense, some feel, how a nominee approaches legal issues and the roy they think about the law and i guess that's my excuse forgiving you a little bit more even what you wanted about constitutional change. but i would say that there are limits on that. some of the limits i talked about in this article itself. i mean, that article makes very clear that it would be inappropriate for a nominee to talk about how she will rule on pending cases. or on cases beyond that that might come before the court in the future. so the article was very clear about that line. now when i came before this committee in my hearing, the senator and i had some conversation because senator hatch said to me -- i'm sorry he's not here -- he said to me, he thought that i had to balance a little bit off.
he said in addition -- he basically said it is not just the people can ask you about cases coming to come before the court, they can ask you a range of questions that are a little bit more veiled than that. but they are really getting at the same thing. if it is not right to say how you would rule on a case that's going to come before the court or i might, then it is also not right to ask those kinds of questions which essentially ask you the same thing doing so in so many words. i went back to senator hatch on these hearings and on paper and i basically said to senator hatch he was right. i thought that i did have the balance a little bit off. and that i skewed it too much towards saying that answering is appropriate even when it would, you know, provide some kind of hen hints. i think that was wrong.
in particular, it wouldn't be appropriate for me to talk about what i think about past cases, you know, those cases themselves might again come before the court. >> actually, that -- that would go into another area. you have been general. you argue ad number of cases before the supreme court. the last person nominated directly to the supreme court, not from -- judgeship, but the administration was when justice rehnquist was working for the nixon administration. went directly to the supreme court. and then i wasn't in the senate at that time but i was there when he was -- being nominated for chief justice. and i asked him about his refusal to recuse himself from a case called laird versus tatum.
laird case involved the nixon administration's surveillance of americans. and as the justice department's legal expert, working with the justice department for the nixon administration, testified before congress about that case, but then after his confirmation, he was probably five justice majority in the very case in which he testified and voted to dismiss the complaint alleging unlawful surveillance of lawful citizens. now i realize supreme court justices have to make up their own mind. back and forthwith justice scalia about his relationship with the former vice president and ruling on cases involving him. i regularly ask questions of nominees that not just for the supreme court but for other courts about potential recusals. now, senator sessions and i sent you a questionnaire and in that
we have the question recusal and you answered -- you take this very seriously. tell me about what principles you are going to use to make recusal decisions, if you can briefly, but then tell us some of the cases where you -- anticipate you are going to have to recuse. >> senator lahey, i think certainly, as i said in that questionnaire answer, that i would recuse myself from any case in which i have been counsel of record at any stage of the proceedings. in which i signed any kind of brief. i think that there are probably about ten cases. i haven't counted them up particularly. but i think there are probably about ten cases that are on the docket next year. in which that is true. in which i would -- i have been counsel of record on a petition
for certioari. that's a flat rule. i said to you on the questionnaire that i would recuse myself in any case in which i played any kind of substantial role in the process. i think that that would include -- i'm going to be a little bit hess tan about this because one of things i would want to do is talk to my colleague up there and make sure this is what they think is appropriate, too. i think that that would include any case in which i have -- officially formally approved something. so one of the things of the solicitor general does is approve appeals for approved amicus briefs to be filed in lower courts or improve interventions. >> the -- i was really shocked by former chief justice
rehnquist's position on our laird case. i thought that was almost an open and shut question for recusal. the reason i mention it -- the supreme court also hases to have the respect of the american people. and certainly people can expect score to rule on some cases where they may or may not agree with them. you about so long as you have respect for the court, then they will understand that. if they see justices involved in cases which they have the financial interest which seems pretty clear cut or -- or -- other direct interests and then they rule on them, you can imagine this -- he rose credibility of the court. >> senator lahey with elena kagan currently discussing what cases she might recuse herself from. what cases she might have some interest in and, therefore, not want to rule on the core p let me bring in some of our panel. if i can summarize what -- just
went on, elena kagan says she's happy to answer any question unless it is about past supreme court cases, current supreme court cases, or anything which might become a supreme court case which i would like to know what that leaves. >> a nice short hearing. >> don't bet on it. >> she will talk about philosophical issues. the biggest philosophical controversy of the supreme court which is original. very much associated with anthony scalia and clarence thomas. the view that the constitution should be interpreted as the authors of the constitution thought it should be interpreted. it is the opposite of a living constitution. she offered a nod to originalists and said in a way we are all originalists because we honor the framers of the constitution. she also said there are times when originalism doesn't work and she gave the classic example of schools segregation. it is clear that the authors of the 14th amendment thought school segregation was fine.
1954 brown versus board of education, a decision that was unanimous and is still pretty unanimously supported, again, she was trying to walk the line on originalism saying that agreeing somewhat but not completely. >> we are all originalists and senator hatch is right. i mean -- no one can say she's not a politician. right? saying -- the senator hatch was right about his interpretation of her article in 1995. i thought it was very cleaver she didn't want to talk about past cases. very interesting past case, the settlement of legislation that said if you -- if we are giving federal money to the universities p, then you cannot ban the military from recruiting. this is a big thing at the heart of whether she is pro or con military which isn't the issue. she join eed before the supreme court taking the opposite stand
the supreme court ultimately did which was a 9-0 slam dunk against her position. seems to me a very typical question for her should be and how would you rule on the solomon case. >> her answer will be i can't tell you. >> i'm not sure about that. she has to give a better answer than that. it can't just be i can't talk about that. she is so associated with that case she will have to do better than that. >> we went through this in the hearings, you see from the democrats, we know the republicans are going to press you on these issues. let's try to lay the groundwork for lahey, michael steele, the republican national committee chairman criticized you on this. let me give you a chance. it is a game of chess. >> the one thing she did write, that she is going to be held to account for, is the notion that the hearings are what she called a vapid and hollow charade. she knew she was going to have to address it.
pat lahey in a friendly way asked her to address this. of course, she seems to have had a bit of a conversion here and what she said, you know, you have to have some feel of how a nominee approaches legal issues but there are limb et cetera on that. clearly she's had a confirmation conversion on that one. >> we are going to work in a quick break. coming up at the bottom of the hour, not only continuing questions for elena kagan but general david petraeus will be before the senate armed services committee. you see the general there arriving on capitol hill. he's taking a demotion. stepping down as the commander of the u.s. central command to take on the very dicey mission in afghanistan. the questions from senators just ahead. 9 to 5? try 5 to 9... everyday. that's why roger needs the ford f-150. it's the only truck that can keep up with him. best-in-class towing and payload, and now, best-in-class residual value. course, roger would never sell his f-150,
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the united states supreme court. on this day, the president's nominee to take a vacant soy that court, elena kagan hopes to satisfy the committee. she is taking questions. on the right of your screen, another committee hearing. the kagan hearings on the left, chairman patrick lahey. on the right senate armed services committee. general david petraeus will answer questions. he's stepping down his u.s. central commander to go to afghanistan. a task he's accepted at the bid of the president and big questions about the policy. not about the commander in afghanistan. we are going to ask you to juggle with us today as we track
the two very consequential hearings. elena kagan's nomination to the supreme court. questions about afghanistan it is a new commander, general david petraeus. welcome back to our conning coverage. i'm john king along with candy crowley. we continue our conversation. so far she is being careful. i would say that -- i will make a judgment. she is failing the kagan test, if you will, which is to say let's open niece up and have fun. >> i'm not seeing any bobbing and weaving like this since muhammad ali in his prime. i think the key thing here is both the opening statement yesterday and today, i come out of a business where you sell it as second chance to make a first impression. first impression to the country is that this is a nice, smart woman. obviously someone that's not answering the questions, not someone who is overpowering. expect the supreme court justices to be big, strong personalities. i have not seen any of that. >> let me challenge that. she is answering the questions. she's not being fully candid and her take is that you can't be.
you can't talk about past cases or current case. >> i think she setting a new standard for not answering questions. >> do you agree with that? >> no. this is the day that she will have an opportunity to respond to the questions that were raised yesterday. if the panelists, members of the judiciary committee are on the case today, they will pose these questions directly to her and is he them out in the open framework. look, one thing that troubled me yesterday. is that thurgood marshall's name was mentioned 35 times. president obama, 14 times. clearly some of the republicans thought by raising his name since she said he was one of her heroes, that they could somehow paint her or guilt by association because of her work with thurgood marshall as his clerk. i think she is going to have to answer clearly today a role he played in her life and he was an inspiration to her and inspiration to many of us. i clearly would hope she can answer some of those questions because some of them were quite
offensive. >> she pained herself into this box and academia, probably maybe when she dreamed of being on the court but didn't think she would be on the court and said these hearings are awful. they have to be more candid. >> talking about everything. a situational decision here as when you get in there. i think you don't want a supreme court justice who tells you what they think about a certain issue, abortion or guns. you know they are going to come up. can we just talk a second about the 50 thousand-foot view? i don't think anybody believes that this -- elena kagan is not going to be the next supreme court justice. so what are the hearings about? >> they are about republicans sort of -- we have a mid-term election coming up in november. republicans will use this as an opportunity to talk about barack obama's agenda, the big government democratic agenda, the so-called activist court, democratic agenda, to take on the standard of empathy we were talking about yesterday. and use this as a way to -- as
wedges to talk about to help them in the mid-term elections. nothing gets out your base in the republican party like these kinds of issues and talk about activist judge. >> let me cut off our discussion for a minute. the key republican of the committee, ranking republican, jeff sessions, he has just begun his questioning of elena kagan. >> we can have brilliant and wonderful people. but if their approach to judging is such that i think allows them not to be faithful to the law, not take the -- be able to honor that oath which is to serve under the constitution and laws of the united states, then we have a problem. and i don't think that is judging. i think that becomes politics, law or something else. so i would say that to you and -- i look forward to all of our members asking a number of questions to probe how you will approach your judgeship. let me ask you this.
>> thank you for those kind words. >> thank you, mr. chairman, and i meant that. one thing i -- before i get started, i would like to ask about your discussion of constitutional change earlier. you indicated that there is an amendment process in the constitution and two ways to do so in the constitution. is there any other way than those two ways that the constitution approved to change the constitution? >> senator sessions, the constitution is an enduring document. the constitution is the constitution. the constitution does not change except by the amendment process. as i suggested to the chairman lahey the constitution does over
time -- where asked -- courts are asked to think about how it applies to new sets of circumstances and to new problems, the things that frame t framers never dreamed of. in applying the constitution, case by case by case to new circumstances and to changes in the world, the constitutional law we live under does develop over time. >> developing is one thing. and many of the provisions, as you noted, they are not specific. but they are pretty clear, i think. you about not always specific. b you are not in power to offer that document and change its meaning. you are empowered to apply the meaning faithfully, wouldn't you agree? >> i do agree with that, senator
sessions. that's the point i was trying to make, that -- you take the fourth amendment and you say there's -- unreasonable searches and seizures and that provision stays the same unless it is amended. that's the provision. then the question is what counts as an unreasonable search and seizure and new cases come before the court and the court tries to think about to the ex-step one can glean any meaning from the text itself, from the original intent, from the precedents, from the history, and from the principles embedded in the precedent, and the court sort of step by step by step one case at a time figures out what the fourth -- how the fourth amendment applies. >> i do believe that there's some out there who think the court really has an opportunity to update the constitution and make it say what they would like to it say. i know we have seen a bit of a revival in the idea of the
progressive legal movement and that people in the early 20th century advocated views for changing america. they felt the constitution often blocked them from doing that. they were very aggressive in seeking ways to subvert or get around that constitution. your former colleague a university of chicago, richard epstein, said any constitutional document that stood in the way of the comprehensive socio-economic reforms, he is referring to the progressives, had to be -- >> watching jeff sessions, ranking republican in the senate judiciary begin his question of elena kagan. we will take you across the capitol. senate armed services, chairman carl levin paying tribute to senator byrd who passed away yesterday. this hearing getting under way. the main event, the questioning of david petraeus. again, this is carl levin of michigan, the chairman. >> exercise and to defend.
he was an eloquent spokesman for the vital role that congress plays in national security in foreign affairs. and our constitutional system. he was a treasured colleague and a friend to the members of the armed services committee. to the entire senate and to the people of this nation. his life's work and his legacy will help guide us and will guide future senates. this morning, the committee considers the nomination of general david h. petraeus to be commander of the nato international security assistance force. and commander united states forces afghanistan. general, you testified before this committee on afghanistan just two weeks ago and certainly no one foresaw the events that bring you to testify here again today. when confirmed you will bring
highly experienced leadership and a profound understanding of president's strategy in afghanistan. which you helped shape as commander in u.s. central command. i want to thank you for your willingness the president's request to leave that position and to take charge of the campaign in afghanistan. we appreciate your sacrifice and that of your family. your wife, holly, is with you this morning. so we all want to thank her personally for her commitment and her sacrifices along the way. i must tell you, general, her understanding of your doing your patriotic duty as you are now doing again taking over the command in afghanistan. her understanding and support of that is truly inspiring. we thank her. we profoundly thank you, mr.
petraeus. i also want to express my gratitude to general mcchrystal for his great stof our nation over three decades. faith takes strange bounces at times and working through them with dignity and honor and as has general mcchrystal is a hallmark of p leadership and of character. the challenges in afghanistan are in many ways as complex or more complex than those that general petraeus inherited when he assumed command in iraq. recent news reports indicate that progress in afghanistan is spotty. casualties among u.s. staff and security forces are higher. while some normal activities returned to helmand and violence continues threaten governance and development in the south. the karzai government has yet to develop services to win
allegiances locally. recent reports suggest that afghanistan's uzbek minorities are concerned about president karzai's overtures to taliban leaders intermediaries. at our hearing two weeks ago general petraeus emphasized, quote, a counterink insurgency operation is a roller coaster experience. but he said that, in his view the trajectory has been upward despite the tough losses. i have long believed the number one mission in afghanistan is building the capacity of the afghan security forces to be able to take increasing responsibility for their country's security. general petraeus, two weeks ago, increasing the size of capacity of the after fan began security forces is, quote, central to achieving progress in afghanistan.
u.s. forces need focus their resources and energy on this effort. there's a significant shortfall still of trainers to provide basic instruction and to afghan recruits and of mentors to imbed with afghan units in the field. building the capacity of the afghan security forces to provide security is not simply what we seek. it is what the afghan people seek. that's what we were told by 100 or so elders in southern afghanistan last year. when we asked them what they wanted the united states to do, they told us that we should train and equip the afghan army and provide for their country's security and then we should depart. the 1600 delegates to the afghanistan consulted a peace at the beginning of the month adopted a resolution calling on the international community to, quote, expedite the training and equipping of the afghan security forces so they can gain the capacity to provide security for
their own country and people. i remain deeply concerned, however, by reports that there are relatively few afghan army troops in the league in operations in the south where fighting is heaviest. the afghan army numbers 120,000 troops. including over 70,000 combat troops. in the past it was reported over half of afghan battalions were capable of conducting operations and either independently or with coalition support. however, a recent report released just today by special inspector general for afghanistan reconstruction finds that the capability rating system used by the training mission, quote, overstated operational capabilities of the afghan security forces and has not provided reliable or consistent assessments.
it was agreed and recently has adopt ad new standard for measuring afghan capability by which measure around one-third of afghan units are now determined to be effective with coalition support in conducting operations. however, even under that new measure, there are significantly more afghan army troops that could lead operations in kandahar than the 7,250 afghan troops now in kandahar. a level of afghan security forces in kandahar, both army and police, is scheduled to rise to only 8,500 personnel by the fall, according to a chart provided by general mcchrystal last month. the influx of forces in and around kandahar will outpace the increase in afghan forces by october according to that same chart.
the current slower pace of operations in kandahar provides the opportunity to get more afghan combat capable forces south to take the lead in operations there. >> that's carl levin. he is chairman of the senate armed services committee outlining the considerable problems that we are having now in afghanistan, the u.s./afghan forces and nato forces there. he was talking about just a blistering report that came out within the past couple of weeks from the inspector general of afghanistan reconstruction which said that basically afghan forces are nowhere near ready to take over for u.s. forces. a very important subject for general petraeus who has been nominated to command the u.s. and allied troops in afghanistan. we want to take a quick break because john mccain, republican, is next up. you will hear from him. - pie. ie? - apple or cherry? - cherry. oil or cream?
afghanistan. senator john mccain giving his statement. >> one of our finest ever military leaders. i hope that does not provoke the same reaction as it did then but we are all grateful for your willingness to answer the call of service again and yet another critical mission. you are an american hero and i am confident that you will be quickly and overwhelmingly confirmed. before i go further, let me say a word of praise for another american hero, general stanley mcchrystal. a man of unrivalled integrity and what's most impressive about his long record of military excellence is how much of it remains cloaked in silence. few understand fully how general mcchrystal systematically dismantled al qaeda in iraq and how he began to turn around our failing war in afghanistan. these achievements and others like them are the true measure of stanley mcchrystal and they
will earn him an honored place in our history. the events that led to this hearing are unexpected and i agree with the president that success in afghanistan is a quote vital national interest, and i support his interest to have a counterinsurgency backed by more troops. this is the only triable path to true success, which i would define as an afghanistan that is increasingly capable of governing itself, securing its people, sustaining its own development and never again serving as a base for attacks against america and our allies. in short, the same results we are slowly seeing emerge today in iraq. before heading out to iraq three years ago, general petraeus, you told this committee, that the mission was hard but not hopeless. i would characterize our mission in afghanistan the same way.
nevertheless, many of the same people who were defeatist about iraq are now saying similar things about afghanistan. but afghanistan is not a lost cause. afghans do not want the taliban back. they're good fighters, and they want a government that works for them and works well. for those who think the karzai government is not an adequate partner, i would remind them that in 2006, the maliki government in iraq was not only corrupt, it was complicity in sectarian violence. a weak, local partner is supposed to be expected in counterinsurgency. that's why there is one. we are trying to push our partners to perform better. that's what we're doing in iraq and that's what we can do in afghanistan if we make it clear that as long as success is possible, we will stay in
afghanistan to achieve it as we did with iraq. not that we will start to withdraw no matter what in july of 2011. i appreciate the president's statement last week that july 2011 is asimply a date to quote begin a transition phase to greater afghan responsibility, and for those who doubt the president's desire and commitment to succeed in afghanistan, his nomination of general petraeus to run this war should cause them toe think twice. still, what we need to hear from the president what our friends and enemies in afghanistan and the region need to hear that the withdraw of u.s. forces from afghanistan will be determined solely by conditions on the ground. let me explain why i believe the 2011 date is so harmful. what we're trying to do in afghanistan is to win the loyalty of the population. to convince people who may dislike the insurgency but who
may also distrust their government that they should line up with us against the taliban and al qaeda. we're asking them to take a huge risk and they will be far less willing to run it if they think we will begin leaving in a year. one u.s. marine put it this way about the afghans she encounters. that's why they won't work with us, she said, quote, they say you'll leave in 2011 and the taliban will chop their heads off. the same goes for the afghan government. we're told that setting a date to begin withdrawing would be an incentive for the karzai administration to make better decisions and make them more quickly. i would argue it's having the opposite effect. it's causing afghan leaders to hedge their bets on us. it's not only making the war harder but longer. if the president would say that success in afghanistan is our only withdraw plan, whether we
reach it before july 2011 or yard wards, he would make the war more winnable and hasten the day our troops can come home with honor which is what we all want. in addition to being harmful, the july 2011 withdraw date looks unrealistic. that date was based on assumptions made back in december about how much progress we could achieve in afghanistan and how quickly we could achieve it, but war never works out the way we assume as today's hearing reminds us all too well. secretary gates said last week quote i believe we are making some progress but it is slower and harder than we anticipated. i agree. the holding and building is not going as well as planned. our operation in kandahar is getting off to a slower and more difficult start than expected. the dutch and canadian governments plan to withdraw soon, and it looks increasingly unlike tla nato will make its
pledge of 10,000 troops. >> republican senator john mccain making the point that republicans have made for some time now, and that is, when the president set a deadline for the beginning of withdrawal of u.s. troops from afghanistan that deadline being july of next year, he immediately encouraged those who just want to wait out the u.s. they certainly want to talk to general petraeus about that. right now, we want to take you back to the supreme court hearings because jeff sessions on the judicial committee is talking to elena kagan about military recruitment on the harvard campus. the context of this is that kagan was once the dean of the harvard law school, and at that time there was back and forth about whether military recruiters would be allowed on campus. that's what this is about. >> they say that president summers agreed to reverse the
policy. the dean remains opposed. >> senator sessions, larry summers and i always worked cooperatively on this policy. i didn't ever do ig that he didn't know about and he never did thag i didn't approve of. with respect to the decision that you're talking about, this was a joint decision that larry and i made that because dod thought that what we were doing was inappropriate, we should, in fact, reverse what we had done. that period lasted for a period of a few months in my six-year deanship, and long before the supreme court issued its ruling in the fair versus rumsfeld case, we were doing exactly what dod asked us to do. >> so it's your testimony that the decision you made immediately after the third circuit opinion, you concluded was inappropriate, you and president summers and you
reversed that policy later? >> senator segs, what i did after the third circuit decision was to say, look, the only appellate court to have considered this question has struck down the statute. we always thought that our policy was in compliance with the statute. the appropriate thing for me to do, really, the obligation i owed to my school and it's longstanding policy was to go back to our old accommodation policy. when dod came to us and said that it thought that was insufficient, that it wanted to essentially ignore the third circuit decision because it was taking it up to the supreme court when they came back to us, we went through a discussion of a couple of months and made a decision to do exactly what dod wanted. >> well, you did what dod wanted when they told the president and the council for the university they were going to lose some
$300 million if dean kagan's policy was not reversed. isn't that a fact? >> senator sessions, we did what dod asked for because we have always tried to be in compliance with the sole loemen amendment, thought we were, and when dod long held that we were and dod came back to us and said, no, notwithstanding the third circuit decision, we maintain our insistence that you are out of compliance, we said, okay. >> in fact, you were punishing the military. the protest that you had, that you spoke to on campus was at the very time in the next building or one or two buildings nearby. the military were meeting there. some of the military veterans when they met with you the first time skpesed concern about an
increasingly hostile atmosphere against the military or on the campus. didn't they express that to you? >> senator sessions, as i said to senator lay he, i tried in every way i could throughout this process to make clear to all of you are students, not just to the veterans, all of our students, how much i valued their service and what an incredible contribution i thought they made to the school. >> i don't deny that you value the military, i really don't, but i do believe that the actions you took helped create a climate that was not healthy toward the military on campus. but let me ask you this. you keep referring in your e-mails and all to the military policy. isn't it a fact that the policy was not the military policy but a law passed by the congress of the united states. those soldiers may have come back from iraq or afghanistan. they were appearing to recruit on your campus were simply
following the policy of the united states congress effectuated by law, not their idea, and that you were taking steps to treat them in a second class way, not give them the same equal access because you deeply opposed that policy? why wouldn't you complain to congress and not to the dutiful men and women who put their lives on the line for america every day? >> senator sessions, you are, of course, right, that the solomon is law passed by congress. we never suggested that any members of the military should be criticized in any way for this. quite to the contrary. i tried to make clear in everything i did how much i honored everybody who was associated with the military on the harvard law school campus. all that i was trying to do was to ensure that harvard law
school could also comply with its anti-discrimination policy, a policy that was meant to protect all of the students on our campus, including the gay and lesbian students who might very much want to serve in the military, who might very much want to do that most honorable kind of service that a person can do for her country. >> i would think that that's a legitimate concern, and people can disagree about that, and i respect your view on that. what i'm having difficult with is why you would take the steps of treating the military in a second class way, to speak to rallies, to send out e-mails, to immediately, without legal basis, because the solomon amendment was never at any time, not enforced as a matter of law, why you would do all of those things simply to deny what congress required, that they have equal access as anyone else. >> senator, the military at all times during my deanship had
full and good access. military recruiting did not go down. indeed, in a couple of years, including the years that you are in particular referring to, it went up and it went up because we ensured that the students would know that the military recruiters were coming to our campus because i talked about how important military service was and our veterans organization and the veterans on campus did an absolutely terrific service to their fellow students in talking to them about the honor of military service. >> well, i would just say while my time is running down, i'm just a little taken aback by the tone of your remarks because it's unconnected to reality. i know what happened at harvard. i know you were an outspoken leader against the military policy and you acted without legal authority to reverse harvard's policy and deny those
military persons equal access to campus until you were threatened by the united states government of loss of federal funds. this is what happened. >> the senator's time expired but you can't sfond that if you want. >> it did not hand in that way, and i think if you had any complaint, they should have been made to the united states congress, not to those men and women who we send in harm's way to serve our nation. >> especially because of the number of people, including the dean of west point who has praised you and said you are absolutely not anti-military, i will let you take time to respond to what senator session has just said. >> thank you, senator lay he. i respect and revere the military. my father was a veteran. one of the great privileges of my time at harvard law school
was dealing with all of these wonderful students we had who served in the military and students who wanted to go to the military, and i always tried to make sure that i conveyed my honor for the military and i always tried to make sure that the military had excellent access to our students, and in the short period of time, senator sessions, that the military had that access through the veterans organization, military recruiting actually went up, but i also felt a need to defend our school's very longstanding anti-discrimination policy and to protect the men and women, the students, who were meant to be protected by that policy, the gay and lesbian students who wanted to serve in the military and do that most honorable kind of service, and those are the two things that i tried to do, and i think, again, the military always had good access at harvard law school.
>> first sign of significant controversy emerging at the confirmation hearings fof elena kagan. jeff sessions boring in on a controversy over the policy when she was dean at the harvard law school. the military for a short period of time not allowed to recruit directly on campus because the campus had an anti-dwis krim nation policy and the military had the don't ask don't tell policy about homosexuals not serving opening. jeff sessions doesn't buy her answer when she says she did everything she could. he doesn't buy it. >> it's true, and i suppose it's to kagan's advantage it is a complex story that changed over time. there was a lawsuit filed. the people challenging the don't ask don't tell law which took away funds from schools which wouldn't let the military recruit, her side won in the third circuit court of appeals
based in philadelphia. later, that decision was overturned by the united states sko supreme court, and the harvard policy followed the course of that litigation. it changed. in any event, it's kind of complicated, and it's hard for me to imagine too many people would be exercised about that. >> it's a simple legal point. that ruling was in the third circumstance kit, and harvard wasn't in the third circumstance kit. it didn't effect you at all and you shouldn't have changed your policy. >> i think that's a fair point, whether following circuit policy or national policy is a big issue to voters, i doubt. >> because if the circumstance kit -- circuit rules on something, it doesn't affect. >> she went, yea, victory. >> if it is complicated in law, that means politics, you can be
jeff sessions and say, you made decisions i can call anti-military. >> if you are elena kagan, you can say i tried to do the best i could in an difficult environment and tried to find a way for the military to have access. >> you mean that they try to reduce complicated issues to simple issues? the answer is yes. he was very strong saying i'm taken aback by the tone of your remarks and called them unconnected to reality. his point is, basically, she's anti-military. her point was military recruitment went up when the recruiters were not allowed on campus. >> both a legal debate on a military issue, let's go to the senate armed services committee, another critical confirmation hearing. general petraeus giving his opening statement. indeed helping to train and equip host nation forces in the midst of an insurgency is akin to building an advanced aircraft while it is in flight, while it
is being designed and while it is being shot at. there is nothing easy about it. but our efforts in this important area have been overhauled in the past year, and those efforts are now broadly on track for the first time to achieve overall approved growth goals and to improve afghan security force quality as well. indeed, afghan security force development has been advanced considerably by partnering efforts that were expanded under general mcchrystal's command by the establishment of the nato training mission afghanistan and the appointment of general bill wald well to command that organization. despite the progress in recent months in afghan security force development, there is considerable work, nonetheless to be done to reduce attrition further and to development effective leaders especially with respect to the afghan national police. further progress will take even greater partnering, additional
training improvements and the training and mentoring missions and expanded professional education opportunities and initiatives are being pursued in each of these areas. recent salary and benefits initiatives are helping to improve recruiting and retention of afghan security forces. training capacity has been increased significantly, and the density of trainers to trainees went from 1 per 79 trainees to 1 per 30, and the unprecedented intensity of our team work with the afghan forces is also beginning to show results. today, afghan military headquarters are collocated with isaf headquarters, sometimes sharing the same operating centers, and nearly 85% of the afghan army is fully partnered with isaf operations in the field. afghan and isaf forces plan, train and fight together.
furthermore, i should note that afghan forces are now in the lead in kabul and in a number of areas. afghan units are now the supported forces operating with significant assistance from isaf for sure but already shouldering the responsibilities of leadership. an excellent example of this was the airways crash north of kabul last month. afghan border police found the site, recovery plans were planned and coordinated by the afghan ministry of defense and afghan ministry of interior. the recovery operation at an elt vags of 12 have 500 was executed by afghan helicopter crews and commandos. even the media and information issues were handled by afghan personnel. that case is to be sure not the vorm throughout afghanistan. nonetheless, they are in the fight and sacrificing for their
country and nothing reflects this more than the fact that their losses are typically several times ours. there is no question that levels of violence in afghanistan have increased significantly over the last several years. moefrover the taliban and its affiliates until this year were steadily expanding the areas they control and influence. this year, however, isaf has achieved progress in several locations. the initial main effort is in the central river valley, an afghan and u.s. forces have expanded control there. the enemy has fought back as we have taken back the an chew wares in the districts throughout afghanistan. nothing has been easy in those operations. but six months ago, we could not have walked through the market in marjah, as i was able to do with the district governor there two months ago.
we are now focusing on kandahar province, an area of considerably importance to the taliban. we are bases it on a strong independent greated civil military and afghan approach to security and development. shaping operations have been ongoing for some months. president karzai and list min r minters have conducted councils focused on increasing the sense of inclusivity and transparency in the province, elements that are eessential and stressed by president karzai. in the months ahead, we will see an additional u.s. brigade from the great 101st air born division deploy into the districts around kandahar city where it will operate together with an additional afghan army brigade. we'll see the introduction of afghan police and u.s. military
police to secure the city itself. along with our u.s. forces and civilians who will work together with the canadian led provincial reconstruction team that has been operating in the city. the combination of all these initiatives is intended to slowly but surely establish the foundation of security that can allow the development of viable, local political structures, enable the improvement of basic services and help afghan leaders and local governments achieve legitimacy and greater support by the people of kandahar. while relentless pursuit of taliban is critical in kandahar and elsewhere, we know from iraq and our experiences that we cannot kill or capture our way out of an industrial strength insurgency like that in afghanistan. clearly as many citizens need to be convinced to become part of the solution rather than a continuing part of the problem.
the national consultant of peace conducted in kabul several weeks ago was an important initiative in this arena, and the reintegration policy that karzai signed today and i talked to him about it on the way here this morning will be critical to the effort to convince reconcilable elements of the insurgency to lay down their weapons and support the new afghanistan. we look forward to working with our afghan and diplomatic partners in implements this newly signed policy. recent months in afghanistan have, as you noted, mr. chairman, seen tough fighting and tough casuals. this was expected. indeed, as i noted in testimony last year and again earlier this year, the going inevitably gets tougher before it gets easier when a counterinsurgency operation tries to reverse momentum. my sense is that the tough fighting will continue. indeed, it may get more intense in the next few months. as we take away the enemy's safe
havens and reduce their freedom of action, they will fight back. in the face of the tough fighting, however, we must remember that progress is possible in afghanistan because we have already seen a fair amount of it in a variety of different forms beyond the recent security gains. for example, nearly 7 million afghan children are now in school as opposed to less than 1 million a decade ago. immunization rates for children have gone up substantially and are now in the 70 to 90% range nationwide. cell phones are everywhere in a country that had none during the taliban days, though the taliban does try to shut down some of those towers at night and does it as well. kabul is a bustling, busy city as are other cities. roads and bridges and other intrastructures that been built.
. even in places where governance remains weak, innovative efforts like the afghan government's national solidarity program, supported by american and international civilians and our troopers have helped enable local councils to choose their own development policies and receive modest cash grants to pursue them. enables further progress and successfully implementing the president's policy will require that our work in afghanistan is fully resourced. at that is eessential for the conduct of this mission that the supplemental funding measure now before congress be passed. this committee and the senate have passed it, and it was heartening to hear speaker pelosi's call last week for the house to do the same. beyond that, as always, i also ask for your continued support for the commander's emergency response program. these are often the most
responsive and effective means to address a local community's needs. indeed, this is often the only tool to address pressing requirements in areas where security is challenged. our commanders value it enormously and appreciate your providing funds for it each year. i once again want to note the extraordinary work being done by ow troopers on the ground in afghanistan, iraq and elsewhere around the world. our young men and women truly deserve the recognition they have earned as america's new greatest generation. there is no question that they compromise the finest, most combat hardened military in our nation's history. the results are no question that they and their families have made enormous sacrifices since 9/11 in particular. many have deployed on multiple tours to perform difficult migs under challenging circumstances against tough and even barbaric
enemies. were cannot ever thank our soldiers, sailors, airmen, marines and coast guardsmen enough to support them. they have been truly wonderful. indeed, nothing has meant more to our troopers their families than the appreciation of those here at home. as you noted, my wife holy is here today. she is a symbol of strength and dedication of families around the globe who wait at home for loved ones while they're engaged in critical work in afghanistan and iraq and elsewhere. she hung tough as i have been deployed for 5 1/2 years. so have other untold other spouses, children and loved onces a their troopers have continued to be redeployed and raise their right hands time and time again. clearly our families are the unsung heroes on the long campaigns which we have embarked over the past decade. one of america's greatest
presidents, teddy roosevelt once observed that far and away the best prize that life has to offer is the chance to work hard at work worth doing. there are currently nearly 140,000 coalition troopers and over 235,000 afghan security force members engaged in hard work very much worth doing in afghanistan. if i am confirmed by the senate, it will be a great privilege to soldier with them in that hard work that is so worth doing in that country. thank you very much. >> that is general david petraeus. these are his confirmation hearings to become the commander of u.s. and nato forces in afghanistan. very little question that that confirmation is going to happen but not without a thorough airing of what's going on in afghanistan. you heard general petraeus making the case that there have been huge successes but also making the case that things are
only going to get tougher through the summer and on in as the u.s. military, afghan forces, huge defense in general petraeus, but as they make their way into kandahar, a strong hold for the taliban. so many people say as kandahar goes, so goes afghanistan. we are not just watching the general petraeus confirmation hearings. we are watching the confirmation hearings of elena kagan to be the next justice on the supreme court. back after a quick break to talk about both. smart...you're staying at this resort for free? how?
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two big hearings we're tracking. general petraeus in his hearing to become the new u.s. and allied commander in afghanistan, and elena kagan, the president's nominee for the supreme court vacancy created by the retirement of justice john paul stevens. with us in the room, candy crowley joining me as we co-anchor our way through this
today. let's focus on the kagan hearings. so far, we have had some contention and we also had lo and behold something that seems obvious to us, she told the committee, yes, i'm a democrat but it will not affect her judgment. she will be neutral on the judge. no surprise but an important statement to get out of the way. >> yeah. i think at the end of the day, i would argue, and i'm not a democrat, and i'm not going to give their strategy. she is going to get more forceful. she is going to get confirmed and she ought to be more aggressive in who she is at that. >> i think her role is to show that she will adhere to the law and she is not going to shake things up but to answer the senate questions and let this process wind its way down. >> let me get to the legal minds in the room. for her to say in discussing the controversy about the military recruiters when they were banned or forced to go through
different rules on the harvard campus, she said, yes, i oppose the don't ask don't tell policy. these are her words, not mine, more rally offensive. any danger in stating her views? as she prepares to be a supreme court justice, any dangers in that? >> she could open it up through the gay issue. there's an important case coming from california, that proposition 8 will get to supreme court on gay marriage. there was a proposition in the people of california voted against it, so that's pretty collateral to the direct issue of what could come up, like housing on military bases. >> her position is identical to that of the president of the united states and we now now, the chairman of the joint chiefs of staff. so it's not exactly a wild out-there position. i think, frankly, it's good that she has something to talk about where she has taken a stand. one of the main criticisms of her is that we don't know where she stands on much of anything. this is a subject in which the
public is divided, but many people are on her side, and, you know, i think jeff sessions did a very good job of questioning her on it and people can make up their minds. >> let's let our audience listen to that because we were listening to general petraeus when some of that exchange took place. >> do you agree with the characterization that you are legal progress sesive? >> senator sessions, i honestly don't know what that label means. i worked in two democratic administrations, as senator graham suggested yesterday, and i think he's right, you can tell something about me and my political views from that but as i suggested to you, my political views are one thing. >> her political views are one thing, how she would judge is entirely different. >> it worked for sandra day o'connor, so it certainly is something -- they don't go to
the court as blank slates. they all grew up in households that had political opinions. we always look at what campaigns they gave to. it's not a big surprise that judges have political opinions. the question is, can you set that aside and move forward? >> it's not only conservatives that are worried at her. it's liberals that are worried about her because she hasn't been a judge, and they're worried about her on the issues of executive power. she doesn't have a record on the issue of abortion, for example. so you get that on both sides and one other thing landsy graham said, what did i expect from president obama? i got what i expected, that elections have consequences, and barack obama's a democrat, so, lo and behold, guess what, he appointed elena kagan. >> when you are in touch with democratic friends, what do they think? to gloria's point, i do think it's the democrats who are
leaning forward and wanting to listen, because the republicans know she's an obama appointee. what are the democrats worried about? >> first of all, many of us know elena kagan and know her values. we know she is smart and will do a great job on the supreme court and upholding the legal values we all cherish but people are concerned about her position on abortion and affirmative action, the hot button social issues, but, more importantly, when senator graham praised her for the position she's taken on executive issues and orders and powers, many liberals say, no, that's not what we're interested in, but by and large, people believe she is comfortably in the main streenl of american judicial philosophy and she's not going to tilt the court one way or the other but she will be a counterweight to some of those extremists from the right. >> i find it amazing that some people say we're going to put her on the court because she has such a good legal mind and will
be a counter to scalia and will be able to bring those conservatives over to her way of thinking. that just ain't going to happen. >> no one suggested that. >> no one coulding closer than justice scalia and justice ginsburg, but, never, should they meet on convincing them of their point of view. >> we do want to go into the rooms, very often when we're watching these things, we get a different feel than what is happening inside the room. that's why we have our senior congressional correspondent dana bash who has been there listening. it seemed to us that sessions was pretty sharp, there was some tension there at least on his side. >> reporter: a lot of tension. there's no question about it. what he was drilling down on, and i think some of you all talked about it, is the fact that he believes at the end of the day what she did at harvard was effectively ignore the law.
when the third circuit said that the law said they needed to deal with recruiting on campus, that she didn't do it, and that was the larger point that he was making in addition to the political point that she doesn't respect the military which is he tried to shoot down by talking about the fact that her father served in the military. the sound bite that you played a while ago was probably one of the most interesting things that she said with regard to answering the fundamental question, which is whether or not the fact that she is a democrat and perhaps a liberal democrat, whether that will hurt her or whether that will carry through on the supreme court, and she had that line ready. she had a prepared and she said it is nothing to do with her judicial philosophy. so that was a fascinating exchange there. one other thing that i don't think we aired, either, jeff sessions read a quote from somebody who was a good friend
of her and somebody who knows the process very well, currently the chief of staff to joed biden, saying believes she a judicial liberal, progress sesive, and there was a back and forth about that with jeff sessions again in his very tough questioning trying to press her, are you a judicial liberal. she wouldn't go there but it was one of those moments where she was trying to delicating dance between the fact that she did work for democrats and is a democrat and promises to be open minded and judicially fair when she gets to the bench. >> one thing i've heard over time is they believe, some of them, that all things being considered, that if the nominee is qualified, the president ought to get their choices. there are republicans who just believe that as a matter of principal. have you heard any of that, anyone signaling, i'm going to ask you tough questions and in
the end, you're the president's choice and if i find you qualified, you're on? >> reporter: not yet. i'm going to listen to lindsey graham because he was the only republican who voted for the president's first nominee, sotomayor. the only republican on this committee. other republicans on this committee have taken that approach in the past, namely, orrin hatch. that has very much been his philosophy and approach in the past but last time nor sotomayor he noted no and he's giving no signals he's going to vote for elena kagan even though he has been more open minded to democratic nominees in the past. >> dana, say with us. we're not expecting much in terms of candor. the nominees are very wearful but she expressed her views on the military policy of don't ask, don't tell. she is on the record as the dean
of harvard a law school and also with the clinton white house. let's play that to see how specific she is withing to be. >> isn't it true, isn't it a fact that harvard had full and equal access to the recruiting office, the office of career services when you became dean and isn't it true well, well, when you became dean? >> senator sessions, the military had full access to our students at all times, both before i became dean and during that time. >> that's not the question. i know that. >> let her answer the question. >> all right. you know -- go ahead. >> so the history of this is harvard did have this anti-discrimination principle and for many, many year, my predecessor, who is bob clark, set up a system to ensure
military access but also to allow harvard to comply with its anti-discrimination policy which prohibited the office of career services from providing assistance to employers that could not sign the anti-discrimination pledge, and the accommodation that bob worked out was that the veterans organization would instead sponsor the military recruiters, so the only thing that was at issue was essentially the sponsoring organization. >> we will get to the legal conversation in the room but at the beginning of that, there was a little tension between leahy and sessions. he said, let her answer the question. what is the mood among the members on this important comment? >> he said, let her answer the question and senator sessions said okay, and then she started to answer and he jumped right back in. i think it's quite typical on how senators on either side of the aisle treat o.j. other,
especially the top republican and democrat. one thing i want to mention that i found terroristing on the issue of don't ask don't tell is that jeff sessions just after that sound bite asked whether or not they opposes the policy. >> she says, i do oppose it now and i did oppose it then. she doesn't have a choice because she nad clear back when she was a dean of harvard law school. she said, i consider it a profound wrong. she repeated it again here. i thought it was an interesting thing, and i wonder what the lawyers there think about someone who was up for the supreme court to be that definitive once again about a matter of policy that will be once again and is currently before the united states congress. >> dana bash in the room. we need to take a quick break. we will let the lawyers explain their views and see if the
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welcome back to cnn's special coverage on a busy day on capitol hill where there are confirmation hearings going on simultaneous takenly. on the right, those are general petraeus's hearings, and on the left of your screen, that's elena kagan who was nominated to become supreme court justice. if all ends the way everyone expects it to, both will get the confirmation nod. we want to take you back to the kagan hearings simply because senator hatch, a long time member of the senate judiciary committee is getting a whans at
elena kagan. >> i argued the case, of course, i walked up to the podium and argued strenuously that the bill was constitutional. >> i'm asking about triple e. >> over the course -- at least for me, when i prepare a case for argument, the first american -- person i convince is myself, sometimes i'm the last person but the first person i convince is myself. i did believe we had a strong case to make. i tried to make it to the best of my ability. >> okay. the statute being challenged in this case prohibited different types of for-profit corporations, none profit corporations and labor units from using their regular budget to fund candidates about election issues within 30 to 60 days of a primary or general
election. they could form separate organizes called pacs, political action committees, to do so but could not use their own money to speak about candidates or issues that they saw fit. i know there is a lot of loose rhetoric about the issue, allowing unlimited spending on elections. i assume that is to conjure up images of campaign contributions or collusion. just to clarify, the statute in the citizens united case was about independent expenditures or money spend by corporations, none profit groups or unions kplet ll lly oh e completely o their own. it had nothing to do with campaigns or spending coordinated or kerkted with campaigns. isn't that true? >> you're right, senator hatch
that this was an independent expenditure case. >> when president obama announced your nomination, he said you believed that you could not drown out the voices of 0 ordinary citizens. virtually all of the rhetoric surrounding this case is about large for-profit corporations but the law in question -- and, of course, this case affected much more than that. as you know, in that case, a nonprofit organization sued to defend its freedom of speech rights. do you agree that many people join or contribute to nonprofit advocacy organizes because they support the positions and message of those groups and because those groups magnify the voice of their members and contributors? >> i do agree that civic organizes are very important in our society. >> these aren't just civic orss. i'm talking about unions and
businesses and nonproofs and profits and partnerships and s corporations and others. >> yes, you are right, that the statute that the government defended in the citizens united case was a statute that applied to many different kinds of corporations, and one of the things that the government suggested to the court in the course of its arguments was one possibly appropriate way to think about the case might be to treat those different situations differently, but the statute itself applied to many different kinds of organizes. >> president obama called the citizens united decision quote a victory for powerful that marshal their power to drown out the voices of everyday americans unquote. it applied to for-profit corporations, nonprofit corporations and labor unions.
do you believe unions are powerful interests to drown out the voices of everyday americans? >> what the government tried to argue in that case was that congress had compiled a very extensive record about the effects of these independent expenditures by corporations generally and by unions generally on the political process and that what the congress had found was that these corporations and unions had a kind of access to congressman, a kind of influence over congressman that changed outcomes that was a corrupting influence on congress. and that was what the many, many thousand page record that was created before congress enacted the mccain fine gold bill revealed and that's what we tried to argue to the court. >> the statute banning freedom
of speech also applied to small s chapter corporations that might only have one shareholder. there are more 4.5 million s chapter corporations in america. we have 56,000 in my home state of utah alone. these are small companies who want the legal protections that incorporating provides. these are family farmers. these are ranchers, mom and pop stores and other small businesses. before the citizens united decision, these small family businesses could be barred from using their regular budget for, say, a radio program or a family flet pope posing their congressman for a vote on a bill if it was that close to an election. do you believe the constitution gives the federal government this much power? >> senator hatch, congress determined that corporations and trade unions generally had this kind of corrupt impact -- >> i'm talk being about the 4.5
million small corporations as well. >> of course, in the solicitor general's office, we defend statutes. >> i understand that. let me ask my questions the way i want too. >> well, ask the question. >> i will. i intend to be fair and you know that after 34 years. go ahead. keep going. did you have something else you wanted to add? >> no, go ahead. >> we have to have a little back and forth every once in a while or this place would be boring as hell i have to tell you. >> and it gets the spotlight off me, so i'm all for it. >> and i've been informed that hell is not boring. >> just hot. >> i have the current volume, the current volume of the code of federal regulations, and this is governing federal campaign finance. it's 568 pages long, this code.
this is not including another 1278 pages of justifications for these regulations nor another 1771 election commission advisory opinions even more enforcement rules and more federal statutes. let me ask you this, do you believe that the constitution allows the federal government to require groups such as nonprofit corporations and small s chapter corporations to comb through all of this? this is just part of it? there are thousands of other pages of regulations, likely hire an election attorney and form a political action committee to express a opinion on the radio or family flet or movie to criticize their elected officials? do you believe that the constitution allows that type of requirement? >> well, senator hatch, i want
to say senator hatch, you should be talking to senator feingold. congress made a determination here and that was that corporations and unions generally had this kind of corrupting influence on congress. >> but you acknowledge that these other smaller groups and other groups that should have a right to speak as well? >> the solicitor general's office of course defending statutes as they're written, and congress made the determination broadly that corporations and trade unions had this corrupting influence on congress, and in the solicitor general's office, we as in the solicitor general's office as others have done, vigorously defended that statute as it was written on the basis of the record that was made in congress, i think it was a 100,000 page record about the corrupting influence of independent expenditures made by corpses and unions.
the court rejected that because of what you started with. you said that political speech is a paramount first amendment value. that's no doubt the case, and the court applied a compelling interest standard and the court rejected the position, but the position that we took was to defend the statute which applied broadly. >> i have no problem with that because that was your job, but i'm getting into some of the comments by some of our colleagues, the president and others about how wrong this case was. when i don't think it was wrong at all. you're 1996 law review article about private speech and public purpose emphasized the need to examine the motive behind speech restrikdss. since you have already written about this, i would like to know whether you personally agree with the supreme court and citizens united decision that quote speech restrictions -- >> you are listening to orrin
hatch question elena kagan. they are having a conversation about one specific case, citizens united, a campaign finance case. it's pretty complicated. it's about her views on the first amendment and free speech, what kind of view she would take on that issue if she is confirmed to the highest court in the land. they are having a discussion that is very important to everyone in washington because it does deal with money and politics but is a much more important and broader decision about first amendment rights and free speech. where is he going with this? >> i think is goes to the philosophical -- the current philosophical bent of the supreme court, the majority, whereas many in the progressive community believes that the supreme court is given a lot of influence and backing a lot of corporations over the interest of, say, ordinary people. so this is another case where many progressives believe that
the roberts court is just really pushing the envelope in giving more power to those who already have power in this society and the democrats are trying to curtail this law to ensure that those who use unlimited money will be able to disclose that in campaigns. >> i can see around this table the exact same reaction that is happening inside the room in the sense that i'm not smart enough to question the court's wisdom here but when you say the court gives unlimited power to corporations, the other side says labor unions get the same right. >> and teeny, teeny little nonprofits, the s corporations that he was talking about. >> why is this so important to the senator, not just about the decision and congress, will they rewrite a new law but about her as a justice on the court for 20 or 30 years? >> he's not criticizing her for arguing the case. she was supposed to uphold the congressional statutes but he's
saying, what is your philosophy because she has other writings saying she has not a problem with some kind of speech being stifled, hate speech, for example, and so the first amendment people up there, which senator hatch is one of the strongest, says this is -- i want to know your judicial philosophy about this. do you really believe that congress has the ability to stop speech within 30 to 60 days of an election, speech about the politics and the issues? >> what makes it particularly interesting is that this is the case that elena kagan argued herself to the supreme court. it was the first case she argued, and the first question was, do you agree with the position that you argued, and she basically said, yes, because, again as solicitor general, she was responsible for defending statutes even if show wouldn't have voted for them. she argued the case, so she very much invested in it and associated with it.
>> i was there for that argument and she actually told the court that she thought it was okay to ban family flets, and thomas payne comes to mind and there was a gasp. >> this gets democrats upset and allows unions to spend as much money as they like as corporations. >> this is not going back in the bottle for a long period of time. we just finished a presidential campaign that broke all fell campaigning laws and limbs. more money was spent and this president says i'm not going to take the federal money, so the old post watergate stuff is now gone and i think many people in the political world don't think there should be any limits. if you raise the money, you get to spend the money. >> there is a basic constitutional issue that a lot of ordinary people have trouble with, two ideas at the heart of citizens united case, which is speech and money are the same
thing and corporations are just like people. >> are they individuals? >> those are profound constitutional controversies, and elena kagan if she is confirmed has to see whether they remain the case. >> if i'm not mistaken, is this not the case after it was decided, the president took on the supreme court during the state of the union and it was a huge moment? >> it was, where just alito mouthed the words not true. >> he was off the mark. >> lots of legal things but also a huge political overlay obviously as to who gets to contribute and who doesn't. we are covering the kagan hearings and also the confirm make hearings of general david petraeus. we want you to stick with us.
the capitol hill building there in washington, d.c. a hot summer day inside the billing and on the grounds, two important confirmation hearings. general david petraeus, his hearing before the senate armed services committee and elena kagan, the solicitor general for the united, the top attorney for the obama administration at the
moment, handed cases before the supreme court, but the president want the her to take a spot on the supreme court. orrin hatch is questioning her. let's talk politics for a minute. candy crowley, our partner anchoring and our chief political correspondent. orrin hatch used to be among the kinder gentler republicans. his colleague bob bennett just defeated in utah. there is a conservative tide in polit politics. senator hatch is up in the 2012 elections. he is a step or three to the right of where we found him six years ago. >> senator hatch was one of those who believed if you're qualified, you get on the court. i don't care if i don't believe in your judicial leanings, but if you're qualified, you go. that went away with society toe meyer.
he sounded you have to in this. it is difficult to take politics out of everything. there is no way to do this anymore. senator hatch has to watch himself. it's not as though robert bennett who didn't even get to the primary in his state of utah. it's not as if he's some raving liberal here. what did he doey he worked with the democrats. so were you can't appear to be up there side be with senator leahy, particularly in an election year. >> he would be murdered by the tea party if he did those types of thing. he has to look to the future or retire. >> you can see this in supreme court votes. in the '80s and '90